5000 or 3000 or $7,000 and we will get your child to a safe or rentech did zone. -- or protect and zone. the president is correct on that. what i think they are ignoring is the united nations health commission on children and human rights. 60% of these kids that have been interviewed are legitimately fleeing violence and their family has put them at risk to get away from a bigger risk. in fact, the law requires a process. there is an adjudication that happens under the law for issues like asylum, refugee status uniting with family members here in the united states, or going

back to their country of origin. all that the law is asking is that you go through that due process. at the time, when immigration continues to be a central issue in this country, this flood of children and unaccompanied minors has become the center point of the whole debate. i wish i could separate the two but it is almost impossible right now. the legitimate issue of violence and fear is the central point behind that law and it is not outdated, it is probably more pertinent now than it was then. >> our guest on newsmakers today on c-span. >> next, representatives from the u.s. sentencing commission the justice department, and public defenders call on congress to repeal mandatory

minimum sentences. they testified on over criminalization. this is one hour and 25 minutes. >> the house judiciary committee's over criminalization task force heard from attorneys and judges friday about potential changes to the federal criminal code. the bipartisan task force was formed in 2013 and reauthorized in february to assess current federal criminal statutes. this is an hour and a half. >> good morning. the over criminalization task force hearing will come to order without objection. the chair is authorized to declare a recess of the task force at any time people we welcome our releases here today. at this time, i'll turn to the

chair of the full committee to introduce our first witness. >> mr. chairman, thank you very much for holding this hearing and thank you for allowing me the honor of introducing my united states attorney who has represented us well in the western district of virginia for the past several years. he is someone who is very interested in not only the enforcement of the law but in criminal law and public policy. i'm delighted to have him here today to testify. welcome. >> thank you. our other witnesses -- we have the honorable judge keeley,from clarksburg, west virginia, a u.s. district judge. district judge. she received her undergraduate degree from the college of maryland in baltimore and she received her law degree at the university of alabama. before attending law school, she

was employed as a secondary education teacher. she received her juris doctorate from western virginia college of law. we welcome you, judge. from 1980 to 1992, she practiced law with the firm of steptoe & johnson. was that here in washington? >> no that was in west virginia. >> so they're originally a west virginia firm. >> yes. >> thank you. she was appointed judge of the united states district court for the western district of virginia from president george bush in 1992. she served as chief judge from march 2001 to march 2008. currently she serves as chair of the criminal law committee at the judicial conference of the united states. we welcome you. our next witness is the honorable patty saris who is no

stranger to this committee, and we welcome you back again. she served as chair of the united states sentencing commission since december of 2010. judge saris has served as united states district judge for the district of massachusetts since 1994 having been nominated to the federal bench by president clinton. prior to her appointment to the district court, judge saris served as an associate judge for the massachusetts superior court. previously, judge saris served as a federal magistrate judge for the united states district court for the district of boston. judge saris served as staff counsel to the united states senate committee on the judiciary. she also served as a law clerk to the late justice robert brochter in the massachusetts

supreme judicial court. she then became an attorney in the civil division of the justice department and held position of the chief of the civil division in the office of the united states attorney for massachusetts. judge saris received her ba from radcliffe college and her j.d. from harvard law school. she is the sister-in-law of jim sokul, who many of you know, whose office was right down the hall for several years and served as chief of staff for chairman frank. >> mr. chairman, if i might? >> the chairman is recognized. >> i shortchanged my united states attorney, and i never want to do that, by leaving out his credentials. he's a graduate of the university of virginia and the university of virginia school of law, and upon grad yagsuation from law school, he served with judge

tierney and served two years at morery morrison & forester in san francisco. he has also lectured frequent the at the justice of north carolina. he served 12 years as assistant district attorney in both the districts of columbia. >> thank you. >> we have at least two virginia grads. our last one is david patton. he's been defender and chief of the federal defenders of new york since july 2011. mr. patton, from 2002 to 2008, worked at the federal defenders as a trial attorney in the manhattan office. during that time he also served as an adjunct professor at nyu

school of law. in 2008 mr. patton taught as an assistant to the university of alabama. and from 2010 to 2011, he was visiting associate professor of law at the stanford law school. he currently teaches professional responsibility in criminal law as an adjunct professor of law at nyu. mr. patton clerked for the honorable hilton for the eastern district of virginia. he's a graduate of university of virginia law school and we welcome you to the committee. we're expecting our first and our own votes of the day at 10:15, so without objection members' opening statements will be made part of the record.

you are recognized for your opening statement. does that suit anybody? no objections? >> mr. bachus, there. thank you. thank you very much for inviting the department of justice today and thank you, congressman for that very nice introduction. we very much appreciate the opportunity to appear at today's hearing. last august in remarks at the annual meeting of the american bar association's house of delegates, my boss, the attorney general of the united states spoke of his desire to forge a more just society and to reform and strengthen america's criminal justice system. he said it is our duty to identify those areas we can improve in order to better advance the cause of justice for all americans. on behalf of the attorney general, i want to thank the members of this task force for your pursuit of the goal of reform. your work has contributed and will continue to contribute significantly to the discussion of improvements to make our

system more fair and efficient. the department has an interest in all of the interests that this task force has explored. in our written testimony we address issues regarding so-called regulatory crimes a possible mens rea uniform crimes, which are the focus of the task force. i look forward to addressing those topics today. in my opening statement, i would like to use my very limited time on focusing on the crucial and urgent need of improving federal sentencing and correction policies. as this task force has recognized our strategies have included a greatly expanded use of the criminal sanction. incarceration rates in this country has skyrocketed. our nation now has the greatest number of prisoners in the country or the world. it is a rate that's five to ten times higher than other

democracies. currently our state and federal government spend about $74 billion a year on incarceration. at the department of justice spending on prisons and detention now amounts to almost a third of our overall operating budget compared to only about a quarter in 2000. as a result, prison spending has increasingly displaced other crucial justice and public safety investments, including resources for investigation prosecution, prevention intervention and assistance to state and local law enforcement agencies. in response to the increasing percentage of our resources devoted to incarceration, the attorney general has launch aided a smart on crime initiative. that began last year. it involves all the federal prosecutors, the men and women with whom i work every day, to ensure we're devoting our resources to the most deserving of the federal criminal charge. smart in crime also augments our

state and local support, as well as funding and other support of prevention in reentry programs. our goal is to fulfill our core function while also fulfilling other priorities to human safety. we have a reform of low-level drug offenders. of the 210,000 people in custody today, nearly half are serving time for drug offenses. the department is committed to controlling charges, making sure that they will face sentences appropriate to their individual conduct. to most effectively address that issue, however congressional action is necessary. we strongly urge this task force and the full committee to take up sentencing reform legislation this year. the department strongly supports the legislation introduced by

congressmans scott and labrador, the smart sentencing act by strongly reducing penalties for non-violent drug offenders. the bill could allow billions of dollars to be reallocated to other priorities while affecting our sentence reform. it has already proved successful at the state level. state leaders and democrats have begun to review policies across the country. changes in state laws have demonstrated that it's possible to spend less money on incarceration without sacrificing public safety. in fact, many of these states have seen a drop in recidivism. so by shifting away our focus on incarceration, we can concentrate on violence protection and vulnerability of appropriations. it is an approach that is not only more effective at reducing

recidivism but also at treating all americans as equal under the law. we cannot achieve these critical goals without the support of congress. we ask you to seize this opportunity in making our justice system fair and keeping our people safe. thank you. >> at this time i recognize judge kaley for her opening statement. >> thank you, chairman, and distinguished members of the task force for allowing me to testify today. it's an honor to appear before you and alongside such distinguished witnesses, especially my good friend and colleague, chief judge saris. i testify today on behalf of the judicial conference of the united states, the policymaking body for the federal judiciary. the conferences committee for federal law that i chair oversees the pre-trial services

system and reviews legislation and other issues relating to the administration of criminal law. my committee has watched this task force's progress with keen interest. the judicial conference has submitted letters for the record at past hearings and i thank you for accommodating us with regard to that. i offer for your consideration today several strategies to address the pressing problem of overcriminalization in the federal system. each of these points curbing overfederalization limiting mandatory sentences and following guidelines are in my written testimony. at the outset however, i do want to emphasize major criminal justice reform is currently under consideration, back and front end criminalization, reforms to the sentence and guidelines will increase the federal judiciary's workload. congress must provide the

courts, which are currently operating at 1997 staffing levels, with adequate resources to shoulder those additional burdens. the failure to do so will result in further delays for your constituents and ultimately could have public safety consequences. for nearly a century, the federal judiciary has expressed concern about the federalization of crime. the conference encourages congress to conserve the federal courts as distinctive judicial form of district federalism. it is the conference's longstanding position that federal prosecutions should be limited to charges that cannot or should not be prosecuted in state courts. to this end, the conference has identified five types of crimes that are appropriate for federal prosecution. first, offenses against the

federal government are inherent interest. second, criminal interest with substantial multi-state or international aspects. third, criminal activity involving complex commercial or institutional enterprises most effectively prosecuted using federal resources or expertise. fourth serious high-level or widespread state or local government corruption. and fifth criminal cases raising highly sensitive local issues. the conference also recommends that congress review existing federal criminal statutes with the goal of eliminating provisions that no longer serve an essential federal purpose, an idea that i know has been discussed at past hearings of this task force. another pressing problem related to overcriminalization is the

best of your knowledge burgeoning problem of overpopulation, especially of crimes carrying a mandatory sentence. mandatory opinions are wasteful of tax dollars by unnecessarily increasing costs which are burdened by the department of prisons which is within the judiciary. for 60 years the judicial conference has consistently and vigorously opposed mandatory minimum sentences. mandatory minimums are incompatible with guideline sentencing, a point on which judge saris makes. on mandatory minimums, judges would not have judging on sentencing. the federal guidelines would remain fully in force. departures or variances from the

guidelines would be reviewable on appeal for reasonableness. hand to her mandatory minimums also cause disproportionality and sentencing by treating those who may pose a very different risk to society. the judicial conference endorses amending 29-c by preventing stacking of accounts and saying that penalties only apply when one or more convictions have become final prior to the commission of the next offense. the congress has already shared draft legislation in this regard with congress which i would be pleased to resubmit to this task force. one example of the significant cost of stacking is the case of weldon angelos a first-time non-violent offender whose 55-year sentence resulted in

stacking mandatory minimums. i would ask whether our taxpayers are truly well served by spending $1.4 million or more to incarcerate mr. angelos for 55 years. thus, the judicial conference has agreed to seek legislation such as the safely valve act of 2013. the judicial conference also supports the policies contained in the smarter sentencing act of 2013. legislation that i know several members of this task force have co-sponsored. the third major public policy initiative that the judicial conference supports relating to overcriminalization is the sentencing commission's april 2014 decision to amend the guidelines to lower the base offense levels and quantity table across drug types. the commission is currently considering whether to make this decision retroactive. the judicial conference endorses

these reforms on principals of fairness, nevertheless recognizing they will impose cost on the judiciary. retro activity in particular would cause a dramatic influx of prisoners out of prison and into the public system. this event would imperil public safety. we endorse activity only if the first wave of prisoners is delayed by six months in order to give the probation system time to prepare for the first wave of new supervisees and if the commission coordinates a national trade program among all the affected agencies. thank you for inviting me to testify today and for considering the conference's views on curbing overfederalization, reforming

mandatory minimum sentences and amending the sentencing guidelines. i look forward to answering your questions. >> thank you, judge keeley and this time we'll hear from judge saris. >> good morning, everyone. ranking member scott, chairman, members of the task force. thank you for the opportunity to allow me to testify on behalf of the united states sentencing commission. we are so pleased the judicial committee has set up this task force. i've been waiting for this hearing and i'm thrilled we're all here with such a distinguished panel. the commission identified reducing incarceration and overcapacity as a priority for the amendment cycle this year and last year. in doing so the commission is carrying out its statutory duty, and i quote the statute. we are required to ensure that the sentencing guidelines minimize the likelihood that the federal prison population will exceed the capacity of the federal prisons. while state prison populations

have begun to decline slightly due to reforms, the federal prison population has grown by about a third in the past decade and exceeds capacity by 32% overall and by 52% in high security facilities. drug offenders make up a third of the sentences federally every year, and a majority of the prisoners serving in the federal bureau of prisons. so they are anextremely important to the size and nature of the federal prison population. can you hear me better now? usually hearing me is not a problem. the commission set out to determine ways to address the crisis and the federal prison budget and population that are fair and appropriate. we set out the law enforcement to make sure any changes would be consistent with promoting the goal of public safety. the commission found in its 2011 review of mandatory minimum penalties, that certain mandatory minimum provisions

apply too broadly are set too high or both. and as a result, certain mandatory minimum penalties are applied inconsistently from district to district and even within districts. we also found that 23% of all drug offenders were couriers who are usually low level, and nearly half of these were charged with offenses carrying mandatory minimum sentences. the category of drug offenders most often subject to mandatory minimum penalties who didn't receive any kind of relief from mandatory minimums like the safety valve were street level dealers who are many steps below high level suppliers and illegal organizations. we are concerned, too, about how mandatory minimum penalties apply and how relief is granted in different demographic groups. mandatory minimums have contributed to the growth in federal prison populations. the numbers tell the story. the number of offenders in federal custody who are subject to a mandatory minimum penalty at sentencing increased from

29,603 in 1995 to 75,000 in 2010, a 155% increase. so the bipartisan seven-member commission has accordingly unanimously recommended that congress reduce statutory mandatory minimum penalties for drug trafficking that the provisions of the fair sentencing act of 2010 should be made retroactive and that congress should consider expanding the safety valve that is allowing sentences below mandatory minimum penalties for non-violent, low-level drug offenders to offenders with slightly greater penalties than currently permitted. they added to allow two levels assigned to most drug traffic offenders based on drug quantity. why? the guidelines were originally set slightly above the mandatory minimum penalty so even those

offenders with no advancements or criminal history would plead not guilty and otherwise cooperating. congress subsequently created the safety valve which gives low-level offenders a greater benefit for cooperating. so setting the guidelines above the mandatory minimum is no longer necessary for that purpose. indeed, after a similar reduction for crack offenders in 2007, the rates at which the crack cocaine defendants pled guilty and cooperated with authorities remained stable. in addition, at the time the original guideline levels were set, the guidelines only had one enhancement for a gun. but now it has 14 enhancements for specific conduct, which reduces somewhat the need to rely so heavily on drug quantity in setting guideline levels. we were encouraged -- we recently did a recidivism study whose offenders were reduced following the 2007 reduction for

crack offenders. after five years there was no statistical difference in recidivism rates from offenders and those released the previous year after serving full sentences. this means that releasing sooner may not lead to recidivism. if this goes into effect on november 1st is important and modest to addressing prison costs and crowding consistent with public safety. but more comprehensive change needs to come from congress. the commission has been encouraged to see the bipartisan legislation introduced here in the house and the senate that is consistent with the recommendations we've made. we hope to see further progress toward enacting legislation in this area and stand ready to work with you and others in congress. so thank you very much and i'm sorry if i spoke too quickly. i am the bane of my court reporter. thank you. >> thank you. mr. patton?

we look forward to your testimony. >> thank you, mr. chairman thank you, members. it's truly an honor for me to be here. as you said i'm the public defender in new york city. good to see you, representative jeffries. together with my defender colleagues from around the country and court-appointed attorneys who are assigned to cases, we collectively represent all those accused of federal crimes who are too poor to afford a lawyer. nationwide, that means we represent over 80% of all defendants in the federal criminal justice system. and i can tell you that we are grateful to this committee for holding these hearings on the very important topic of overcriminalization. when i think of the term overcriminalization, i think of a quote by the late harvard law professor, william stunts, who

wrote, legal kmencommendation is an important thing, to be used sparingly but not pro missmiscuosly. the sentencing has become promiscuous. whether it's the number that has tripled since 1980, or most significantly, if measured by the number of people the federal government imprisons. the federal prison population has increased by 1,000% since 1980. and in the past 10 years it's increased at a rate three times the rate of state prison populations. and this is at a time of historically low crime rates. so it's not an increase in crime that's driving the increase in incarceration. so what is driving it? two things in the federal criminal justice system. one, a vast increase in the number of federal prosecutions

of basic routine crimes that were once solely the province of state and local law enforcement. and two, vast increases in set -- the severity of federal sentences that prevent federal judges from imposeing what would otherwise be reasonable common sense, appropriate levels of punishment. you have already heard a great deal about the human toll this state of affairs has taken and the fiscal toll it has taken. i would like to focus in my brief time on the toll it is taking on the very structure of the federal criminal justice system. what do i mean by that? i will summarize it with one number: 2.7. 2.7 is the percentage of federal criminal defendants who go to trial. 30 years ago, the trial rate was five times that number. it's a state of affairs that

caused the supreme court just two years ago to state that criminal justice today is for the most part, a system of pleas, not a system of trials. this vanishing trial rate poses a serious threat to the quality of justice in federal courts. why is that? well first we have to ask, why are they disappearing? and the answer is straightforward. the disappearing trial rates correspond precisely with the enormous increase in power we have given prosecutors via severe and mandatory sentencing regimes. prosecutors have always had enormous discretion in charging, but they now have full control over many cases from start to finish. and they control whether to charge a mandatory minimum or not entirely at their discretion, and that power is used largely to create a spread in the sentence that someone will receive if they plead guilty versus if they go to

trial. and that spread can be enormous orders of magnitude. 10, 20, 30 years or more. why is that a problem? it's a problem because juries are fundamental to our criminal justice system. they are the most direct way that ordinary citizens can check government overreach. they are vital to a constitutional democracy like ours. and they also happen to be the best way we know in the history of the world at transparently and accountably getting at the truth of various matters. juries teach us that sometimes government agents make mistakes. sometimes witnesses make mistakes. sometimes witnesses lie. and those truths get lost in a system where only 2.7% of defendants can go to trial because they can't risk the decades of additional time they

might face if they go to trial. not based on severeity of the offense but purely based on the exercise of that trial rate. it's a system that our founders would truly find unrecognizable. it's a system that does great damage to our constitutional values. i see that my time is up, andto answering your questions. thank you, mr. chairman. >> thank you very much. at this time we're going to have questions from the member. i'm going to go directly to mr. scott and i'll reserve my questions if there's enough time. >> thank you, mr. chairman. i want to thank all the witnesses for their testimony and ask judge keeley, on mandatory minimums i want to thank the judicial conference for their opposition to mandatory minimums. i mean, they've been studied, they violate common sense they discriminate against minorities waste the taxpayers' money and frequently require judges to impose sentences that violate common sense.

now, if we eliminate mandatory minimums not just in the smarter sentencing act but in the safety valve act that would allow judges to sentence below the mandatory minimum when the sentence violates common sense, if the judge went awry would the departure from the sentencing guidelines be an appealable issue? >> yes. as i noted in my comments whether it's a departure specified under the guidelines or variance pursuant to the 3553 act, it's appealable, so no judge has federal discretion in that area. >> thank you. judge saris, on the retro activity, you mentioned that those who got retroactive benefit last time recidivated at

a rate significantly insignificant. in fact, it was a little lower, is that right? >> yes. >> are there any statutory barriers we need to look at that slow up the work of the sentencing commission? >> that slow up our work? no. i mean if i had a wish list i could probably go through them but i think right now we feel as if we are a bipartisan commission working at the crossroads. i think we feel we have worked well with congress we have our hearings that there are no statutory barriers to doing what we want. there are certain things we would love. but the commission at this point feels as if we are able to work very well on the whole area of recommending changes to the congress as well as doing our own work with respect to the guidelines.

>> thank you. mr. heaply are you prepared to discuss prison issues? >> yes, sir, i think so your honor. >> can you tell us the programs that help reduce recidivism. >> the bur reau of prisons has created a reentry program. it is imperative that we spend time, men and women who are incarcerated to develop skills so they can be productive. in our view a vast majority of them want to make choices that are productive and not criminal, but they need assistance. there is substance abuse counseling to job skills educational programs of a g.e.d. to college classes. we're working to get some of the on-line providers like liberty university to provide content to

prisoners within the virginia system. there is a great bipartisan movement across the country to provide more of these very tangible services to those who are incarcerated to help reduce recidivism when they get out. >> have those programs been studied to ascertain whether those are effective? >> theron going because the program is relatively new. anecdotally, we have studies that show they work. we would urge they continue to be fully funded. >> what about programs like unicor? >> unicor also provides tangible skills to those incarcerated that translates to job opportunities when they get out. if there is a certification for those incarcerated, then those are very portable skills used on the outside. >> now, that pays for itself; is that right? >> absolutely, it does. >> and the recidivism rate for those who have had the opportunity to get into unicor? how has that compared to the

general recidivism rate? >> i can't give you a specific figure, but absolutely lower congressman. it makes common sense that when you have a skill and you can get a job you're less likely to make a criminal choice. >> and the opportunity to get into unicor, as i understand it is a great management tool. >> it is. it enforces discipline within an institution. and people that are involved in prison programs generally have a lot fewer disciplinary ablgszctions when they're in kars ratingcarcerateincarcerating. >> can any of the panel agree to get a mens rea agreement before we prosecute people? >> the vast majority of criminal statutes does include a mens rea standard. there are many, however that do not. there is a role for very strict liability offenses where there are highly regulated industries that impact health and safety or

environmental protection. there are occasions when we believe that statutes that provide for strict liability are appropriate, they just have to be very ju dishsdiciously used. >> now mr. conyers. >> thank you mr. chairman, and i welcome the contributions of the witnesses. i can't emphasize too much how important this task force is in the judiciary committee, and i'm so glad that this discussion is taking place. judge saris, the commissions act demonstrates that the 57,000 inmates eligible for the drugs

minus 2 amendment are of color black or hispanic. would you agree that denying retroactivity would disproportionately impact minorities who have already been prosecuted and sentenced at disproportionate rates? >> let me start off by saying we haven't made our decision yet. we vote -- is that okay? we vote next week actually next friday. back in d.c., 1:00, we vote. so we have not yet made a decision on retroactivity. we have held extensive hearings had innumerable letters from law enforcement to the courts from various stakeholder groups, religious groups. we've heard from everyone and we will make that decision next week. what i will say mandatory penalties and our drug scheme

overall have had a significant impact on racial and ethnic minority communities and more than 70% of offenders subject to mandatory minimums are minorities, black and hispanic. one of the reasons for that is especially black offenders, have qualified for the safety valve less so that the mandatory minimums have disproportionately affected minority populations. >> thank you so much. could i ask for the opinions of judge keeley and david patton on the same issue, please? thank you. >> thank you, chairman conyers. i mean ranking member conyers. i wanted to remind everyone that our committee the criminal law

committee, did have authority from the judicial conference to make a decision regarding retroactivity, and at our june meeting of the criminal law committee, we voted by a large majority in favor of making the drugs minus 2 amendment retroactive. >> thank you. mr. patton, would you comment on this this? >> i think it's safe to say that offenders would strongly encourage the commission to make -- and for congress to make any changes retroactive. it really does not serve the interest of justice for the amount of time somebody serves to just depend on the fortuity of when the law goes into place. if it's an unjust sentence, it's unjust for the people serving

the time now in addition to people who will be sentenced tomorrow. and it would, i think greatly help toie emiliorate the crimes we see in the system. >> my next question is to judge saris, judge keeley and judge patton. here it is. congress recommended mandatory minimums to be imposed against drug kingpins but as we found out, it's often low-level offenders offenders, often people of color who receive it. does this comport with your

experience? >> i'm just going to jump in because congress asked us a few years ago to do a study on exactly this issue when we issued our report in 2011. and at least as of that time we studied it and in fact, the mandatory minimums, as we said, applied very broadly not just to serious and major drug offenders, but they were also applying to street-level dealers, couriers and mules. so, for example -- now, many of those get safety valve relief but they're getting hit at very high levels with convictions of statutes carrying mandatory minimum, and particularly the street-level dealers are, in the end, subject to them. >> thank you. could i finish, mr. chairman, by asking judge keeley to weigh in on this please? >> as you know, i speak for the conference, and the conference for 60 years has opposed

mandatory minimums and one of the basic reasons we've opposed it is because of the disproportionality and sentencing that results by treating similarly offenders who actually may pose very different risks to society. and so to the extent that the statistics demonstrate that that disproportionality affects the african-american and the hispanic community more in a more disparate minimums are viewing a similar -- apoffender who isn't similar in a very similar way instead of individually, which is the way sentencing ought to result. >> david patton, would you give us your opinion? >> absolutely. to your initial point about the fact that mandatory minimums

sweep in people that they were not recommendingly intend lyoriginally intended for, i think the evidence is in that is absolutely the case. congress intended for mandatory minimums to apply for managers and organize ares of large scale drugs organizations and instead they have swept in much lower level offender. >> thank you all very much. >> at this time i recognize the gentleman from new york. >> thank you, mr. chairman. let me first just thank the distinguished panel for your prepares here today and your tremendous service to your country. let me start with mr. patton. it seems that there are four primary actors in the criminal justice system. you have the prosecution the defense, the presiding judge and the jury. but if you have a trial

participation rate i believe the number was 2.7%, it seems that the course of the criminal prosecution as you point out in your testimony is largely determined by only one of those four actors, the prosecution. to the exclusion of the other four contemplated to bring about a just result in our constitutional system. meaning presiding judge largely excluded, certainly the jury largely exshrewdcludedexcluded. the opportunity to mount a meaningful defense largely excluded. so the system is out of balance in my view. what would be your recommendations in terms of how to restore some balance to the system in a manner that allows for meaningful engagement and participation by all of the actors in the criminal justice

system so we can have a better shot at reaching the most just result? >> i think the committee is probably growing tired of hearing it, but the answer is straightforward in one respect and that is to eliminate mandatory minimums. prosecutors will always have a great deal of authority, but when they control the back he said, that is an unhealthy state of affairs. most prosecutors are trying to do the right thing. but we are a nation of laws, not of men. we are weary of investing too much power in untransparent decision making. and that's what happens in the plea bargaining process. when a judge imposes the record it's on the record, there is a transcript, congress are decide whether or not changes need to

be made. but charging decisions about whether or not to stack multiple 924 drk cs or file an 851 that which poe exponentially increases someone see sentence those are done untransparently. >> thank you for your service and i want to follow up on the incentives to move forward.done untransparently. >> thank you for your service and i want to follow up on the incentives to move forward. not withstanding the direction given by the attorney general. in the con testtext of a u.s. attorney receiving a performance evaluation, line attorney is it normal practice that that performance evaluation is based in part on their conviction rate? >> for >> no. absolutely not. >> so somehow prosecutorial advancement determined?

>> good endsdepends on the individual, but it's about judgment, compliance with our discovery obligations and legal requirement to do -- to roy what is material and exculpatory to the defense. i've never in my 20 years as a federal prosecutor been asked about a conviction rate. i don't even know what it is. and i don't keep track of that for the lawyers in my office. our paramount objective is to do justice and would he ee evaluate our people on their consistency in the pursuit of that goal. >> so how do you measure judgment and discretion and ability to do justice? >> it's hard to do that impeericly or statistically. i don't think justice is always reflected in a conviction rate or the number of cases handled. it's really a product of a case by case evaluation of whether or not someone is fair has an innate sense of justice and is achieving outcomes that are fair

and just. and that's what our people are trying to do every day. >> so some have articulated a concern based on performance evaluations being largely measured by conviction rate and/or enhance the length of sentencing. from your perspective that's not your view and hopefully that is the case across the country. the other side of the coin is the notion of what are the disincentives for prosecutorial misconduct. and can you cite incenses where examples of bad judgment perhaps even judgment that crosses the legal boundary into potentially unlawful conduct has actually been sanctioned in a way that every other american citizen has to face consequences in the context of the criminal justice system when they make a grieve

yus error? will. >> in the federal system, we have the office of professional responsibility that receives complaints and investigates allegations of professional misconduct. state bars do the same thing. there is a doctrine of sovereign immunity that actors in good faith attempting to do their job, if they make decisions that are later viewed to be unwise are protected from immunity. but there are tremendous checks and balances internal within our department to ensure that our lawyers, our junior lawyers on up to senior decision makers, are playing by the rules and are doing what is right. >> i think my time has expired, so i yield back. thank you. >> thank you. let me first go to judge -- actually i think i'll go to our u.s. attorney. you mentioned environmental

crimes. we've had testimony before this committee and i personally know of two businessmen in my district that were convicted in the '80s of environmental -- violation of environmental statutes statutes. none are actually criminal statutes. by regulation it was made a crime. and the regulation basically said the storing of toxic materials. in both of those cases, what happened, and i'll just give you one example, a gentleman who is a vietnam war veteran businessman, bought a piece of

property which had been a business ongoing business. he found on that site some barrels and he. >> reporter:ed reported to the epa that he had found these barrels. and he was told that he needed to dispose of them. he contacted them back and said it will cost over a million dollars. he started disposing of them, but they gave him a deadline. and he didn't meet that deadline. here was an individual that bought a piece of property not knowing there are chemicals stored on it. notified the agency. started disposing of them. and it's hard to get people to take these chemicals.

that's a very expensive process. and then going with mr. patton is saying, his testimony on page seven, i can see in a lot of cases where the u.s. attorney's office for the environmental protection, they have all the resources. he is faced with the situation of hiring an attorney. they actually indict him. he's offered a year and a day to serve 60 days. he's told that if he doesn't accept that, that he could get ten years. his attorney spent over $100,000 in the 1980s on attorneys. he can go to court can he roll the dice can he payhe can pay his

attorneys money he doesn't have.he can roll the dice, he can pay his attorneys money he doesn't have. but he chooses to cop a plea. he's obviously very bitter about this because he thinks he's done everything -- and i think -- he says to me everybody says why dpts didn't you go to trial. of course he's saying i can't risk this. i have young children. he has a criminal record. can't vote. that's how i found out about the situation. i don't think many people knew. you know mensrea, is intent to violate the law even after you notify an agency something that you didn't cause does anybody

have any comment on that any actually talk to people up here on various committees and in the judiciary committee, and they said there was a slew of these convictions back in the '80s. literally thousands of these cases. >> i prirkt theappreciate the question. i would not want 20 years from now to second guess every charging decision. but just on the facts that you described and nothing more if that came if me today, that would not be a federal criminal case. >> now it is not. i think it's changed. >> but let's assume that instead of it being an individual, sole practicaltioner practitioner, that it's a company that routinely deals with hazardous waste has professionals aware of the regulations. perhaps are warned that you must dispose or you will face a legal consequence. and they affirmatively choose

not to. then that probably should be a crime. and this gets down to prosecutorial discretion. the reality that we're dealing with is that i don't have enough people, we don't have any agents, enough prosecutors to deal with the 100 statutes guns, fraud, child exploitation, that we face every day because we have so many people in prison and our budgets are so stretched. so a case like an environmental regulation of someone not throwing appropriately disposing of a barrel of waste to be honest, that is a peripheral matter that i'm even less likely to reach now because i can't get my core work done. it's only if we look hard at sentencing that we increase the amount of resources available for us to get our core work done that we will really be able to sustain the system going forward. >> anybody else have any comment? i see my time has expired.

mr. sky. >> thank you, mr. chairman. i don't know if we usually introduce guests in the audience, but a group from baptist temple children just arrived and we wanted to make sure they were -- >> could they stand so we know who they are? thank you. they're touring the capital ig and a capit capitol. >> what school? >> six mount zion baptist temple church in hampton, virginia. >> okay. >> that's your district. you have an outstanding congressman. >> i wanted to follow up on the questions. you suggested that perhaps strict liability may not be appropriate if health and safety is not a factor. even if it is a factor, we have

willful it is regard to get past district liability. and we have civil signs. what rational basis would there be when people just didn't though know? >> i think there is a greatly enhachbsed deterrent effect. when you're talking about people that work in highly regulated industries like the food and drugs, public -- protection of public health and safety then it is a policy choice that congress has made to force those people to know the rules. and if they do not know the rules, then there is a criminal sanction. we had a recent case involving jensen farms, a business that produced fresh fruit and they had cantaloupes that were insufficiently washed and they had listeria on the cantaloupes.

they got into the stream of commerce 20 or 30 states and ultimately tied to 33 deaths because of the ingestion of that listeria. no evidence that the two proprietors or two owners of the business intentionally sent tainted cantaloupe but because they're operating in a business that directly has that kind of impact on health the strict liability misdemeanor of being responsible for ensuring that did not happen was employed by the department. in cases like that we -- >> you mentioned a misdemeanor. >> not a felony. >> and civil fines were insufficient? >> the judgment of the prosecutor in that case is that if it is a business problem it can be emil or rated by writing a check and dissolving a civil case. insufficient deterrence.or rated by writing a check and dissolving a civil case. insufficient deterrence. criminal sanction has a greater

attention 2k3we9getting. >> but this is limited to health and safety involved? >> the bp oil spill for example, there was no one who intentionally injected oil this to the gulf of mexico. but it was of such magnitude that a responsible corporate officer could be held responsible as could the company. generally those crimes are in that area, highly regulated industries sophisticated actors who have to make it their business to know the rules and ensure that people are protected. >> highly regulated is an important factor because they know the highly regulated nature of the business they're in. >> congress has decided that we will put about the onus on them essentially, the public, the person eating the cantaloupe he can't protect himself. that's why as a policy matter, the onus is on the company that distributes that to ensure health and safety is protected. >> thank you. judge keeley you mentioned state offenses should not be

tried in federal court. should re peelrepeal the statutes or allow discretion of the prosecutors? >> i think the response of the conference would be that we've always urged congress to do reasonable review of statutes to see if there are still effective, if there is still a need for them. so in those circumstances, it would make sense to review those statutes. it would of course be with that the discretion of congress to determine whether those statutes should remain in place or be repeal repealed. >> is the decision to trial something in federal court reasonable if there is a differential in punishment? should that be a factor in ascertaining whether or not the federal government ought to prosecute? >> certainly it is not within the conference's prerogative to say what crimes should be

prosecuted in federal court for a particular reason but among the factors that we have recommended to congress to review, that would not be one of them. >> thank you. >> i know when people read laws, they say congress intended this. many times congress didn't intend. you ride a statute that says that you shall not store hazardous waste. when that statute was passed, i don't think members of congress

realized that they were saying if you buy a piece of property, you discover toxic waste on it or stored chemicals this barrels, or you buy a building and there are chemicals stored and you almost immediately report that, you find out what it is, you report it, and the cost is several times everyone more than what you bought the piece of property for. an and i'm back to this gentleman because this is a real example. he actually said to the epa, you can just have the property. you can just take the property. i'm not sure that congress ever

intended -- and it may an misdemeanor, but a civil fine or forfeiture of the property or something of that nature. do each of you agree that there maybe should be just a tighter general statute on mens rea? >> no candidly. no matter what we do the system depends upon individual discretion of decision makers. and if you came to my office on behalf of that client who had the barrel of hazardous waste, again, i cannot imagine why i would bring that case. >> i agree. >> just does not make sense without more facts. but to apply a uniform mens rea standard without a careful review case by case statute by

statute, there may be cases, rare cases, with more sophisticated actors where a responsible corporate officer should be held accountable as a matter of policy. apcongress really again has passed these statutes in the area of health and safety. so mens rea congress needs to be explicit when drafting statutes. generally they are. judges try hard to interpret them and apply certain standards to the interpretation. but a blanket standard that would apply universally we think would be over inclusive. >> judge keeley. >> as you know, i'm appearing here todayinclusive. >> judge keeley. >> as you know, i'm appearing here today as a conference witness and i can only speak on issues on which it has taken a thinks and it has not taken a position on the mens rea question. >> the commission focuses on penalties, not the elements of the crime so we have not taken a position there either. >> and i'm sure it won't come as

a surprise that most of our clients are not facing regulatory misdemeanors. >> i'm sitting here asking these questions and kind of the elephant in the room this is many half of 1% of all cases. we're not dealing with the 99.5% here. i read on page seven of your testimony, i saw this last night, and i'm thinking this is cuss custer's land stand. but you say your office represents indigent in the southern and eastern stricts s districts of new york. all of new york city, five counties north of the city and long island. you have 39 lawyers. for those same two districts, there are 300 federal

prosecutors. 39 to 300. of course my first question, and i didn't read the next sentence, well, yeah a lot of them are attorneys. but you've even considered that and you say even after that you represent over a third of those defendants. so a third of them don't -- over a third of them don't. and there is still an 8:1 ratio of rossprosecutors to defense attorneys. now, there is no way that you can frytry all those cases. >> and that really understates the resource imbalance because in a doesn't that doesn't take into account all of the federal and local law enforcement agencies and all the resources they bring to bear. and cases require more and more time and energy these days. >> so 90% of your budget is

salaries. so you have 10% -- you can't really i wouldn't think that you could pay for many dna tests. >> well, we can. i don't want to overstate it. i think the judicial conference works with us to help us with our funding. but it's out of whack. it's thoroughly out of balance with the resources on the other side of the aisle. even a routine case today will on which involve cell phones or computers that need to be examined. the government will make claims based on cell site data or metadata. these are things that require experts, that require diligence and time and energy to investigate. and we are certainly outgunned in that regard. >> could i jump in on that? high people who are with me probably will be upset that i'm jumping in on any question.

but i have to very quickly -- the federal public defender very talented lawyers only represent in every district a percentage of all of the criminal in-dyigent criminal defendants. they're appointed a lawyer who has to be constitutionally effective. it could be a public defender, a private lawyer on a list from which a judge selects. but we agree the department strongly supports adequate funding of indigent defense. it is important that the resources are relatively balanced. if a defendant needs a dna expert or wants to bring a witness in from some other place, that he be able to do that. if he's indigent, the court pays for that. the attorney general consistently has spoken of the they'd for adequate funding. i as a trial lawyer i know that i'm frankly in a better position if my opponent on the defense side is an effective advocate. juries wapts to seey sies wants to

see a fair fight. so we agree indigent defense need to be well resourced. >> and you mentioned you were a trial lawyer. i was a trial lawyer and you know if you have the resources, it's a tremendous advantage. i've actually sued the railroads and i represented the railroads. and i appreciate the difference in resources. >> you ought to go into environmental defense. you have a future there. >> my people wanted me to ask this question. you talked about your people. how would a requirement that the person -- we're talking about the cases of where there doesn't seem to be any overt act or intention. how would a requirement that the person actually acted willfully

did somebody not just failed to do something, of course the food case you're talking about i guess was a failure, but acted willfully to prevent prosecution of these types of egreenlggious cases that i've described? their characterization of egregious. >> the cases in which we have charged a person or are a company for doing something that was not willful are extremely rare. let me emphasize again, they are a very, very small percentage of the overall number. but again, there are instances where congress has made a policy judgment and we agree that it is important as a matter of strict liability to hold someone accountable because they should have known the rules. the biggest example of the strict liability defense in american justice is drunk driving. you don't have to necessarily hurt anyone. but if you make a decision to get behind the wheel while intoxicated, you're strictly

liable even if you cause no harm. >> that's a willful act of getting behind the wheel. >> that's true. but it doesn't necessarily call injury. but we believe that there are types when holding a company or individual responsible, even if they weren't willful they didn't take steps to pre-spreptvent an injury, we believe that is an arrow in our quiver to use in the appropriate case. >> well of course your case on the food there were deaths. >> there were. exactly. >> that's sort of a different -- in this case, there was toxic chemicals that had been stored there that only just continued to be stored there. but there was actually an affirmative act of reporting i have something here that i'm determined to -- what do i need to do. >> we had a case in our district years ago involving a

pharmaceutical firm that was marketing pain killing medication oxycontin affirmatively hiding evidence of its addictive ths. and in that case, my predecessor in this job had three individual executives plead guiltity because they were responsible corporate officers who have a should have been aware that the marketing was deceptive. >> and i understand they acted willfully. they were warned they were cautioned, you know. i understand. let me just -- do you have any final comments? >> yes, mr. chairman. willful blindness is prosecutable under a mens rea requirement. the problem is when people honestly did not know that violated some arcane regulation and he said up in criminal court, i don't think there is any limitation on civil fines in

that situation but getting in to a criminal prosecution is one of concern when you are dealing with health and safety, you can have -- i guess you can have different standards. but at some point, you have to know you were actually committing a crime. mr. chairman, i'd like to submit three document, bon one from the urban institute, one from families against mandatory minimum, and a letter to the sentencing commission. >> thank you. in fact without objections, all members will have five legislative days to introduce any extraneous materials or statements, or to submit written questions to the witnesses. and at this time i'll recognize chairman of the full committee for questions. >> thank you very much. i apologize for having to slip

away. we have a task force that the speaker appointed regarding the issue of our border and children and others coming to the border and i had to go to that meeting. but i'm glad i got back in time to ask a few questions. and i'll address this to u.s. attorney heaphy. we learned recently that the solicitor general's office filed briefs with the supreme court this three cases that reflect the department of justice's new position that the willfully element of 18 us c-section 101 and 1035 requires prove the defendant made a false statement with knowledge that his conduct was unlawful. so my question is do you believe it is appropriate to require proof of knowledge of unlawfulness for every federal crime and what about for every element of a crime. >> yes. i'm familiar with the recent position taken by the solicitor general to limit to false

statements in federal health care programs 1035, and 1001, which is the general statute which prohibit willss false statements. but "willfully" has to be read in context. there are other contexts in other statutes in which the word "willfully" has a different interpretation. like in the securities act or in tax offenses pp, there is no specific intent requirement even though the word "willfully" appears there and that has been upheld by the supreme court. so the opinion was limited to 1035 and 1001, but it does not touch the long settled view of how "willfully" is defined in other areas of the law because of a different copntext. >> i would imagine that would cause a lot of confusion for those who are not as lawyer ary as you and i try to be. and i wonder, do you believe that the definition of

"willfully" should be consistent? >> again, i think it depends on the sentence in which it appears. i think most of us understand -- >> as a legal term so that when one is being given legal advice and when one is attempting to abide by the law and not act in a willful way that would cause them to encounter that, would it not be helpful to have a definition that was consistent across the law? >> i think the department's position was based on sort of a similar view that it was important to make clear that "willfully" in the context of 1001 and 1035 meant someone had to know that the statement was false. as a matter of fair notice yes it's important for people to understand that certain decisions will or will not violate the law. but again, a uniform standard that would apply to that word in every context we would not go

that far. >> and with regard to the underlying question of the appropriateness of requiring proof of knowledge of unlawfulness for every crime i take it your answer is that you wouldn't require that in every case. can you give us some examples of cases where it would not be appropriate to require that the person have mens rea or criminal intent? >> right when you walked in, we are talking about the perdue phrma case. they were marketing oxycontin, not flagging the addictiveness. and three executives, no evidence they were personally aware of the marketing message, but they should have. and under that responsible corporate officer dock trip, they were charged with and pled guilty to a misdemeanor.

essentially responsible corporate officer. so again, these are rare cases and i emphasize we're talking here about a very miniscule percentage of the overall work in a we have to do. the garden variety day to day work in our department as you you know is dealing with garden variety crimes. but there are limited circumstances where we think it is appropriate to hold people accountable even if they don't though because know because they should have known given they work in a regulated industry. >> and what about the rule of lenity and the possibility of coded guying this rule inging inging inging inging inging codifying it that says when a statute is not clear, it should be interpreted in favor of the defendant is

this. >> it would be a nom husband for congress to say if we're ambiguous, give the benefit of the doubt to the defendant. judges do that. that only kicks in it if the language is ambiguous. so we would always urge congress to be very specific this terms of what level of intent is required in defining crimes. >> congress tries but with 4500 separate federal criminal statutes, it's not always as clear as one might think especially when you don't have the real life case matter before you that you're applying the test of that language to. and that is why i think some of the criminal law scholars haved a companyadvocated something like that. let me ask any of the other panel witnesses if they have anything to offer on either of those two subjects. >> i had mentioned earlier that

the judicial conference has not taken a position on mens rea and i'm here as a conference representative. so, no, i don't have any additional comments. and i mentioned as well, we focus on penalty, so we don't have a position. >> all right. you're the representative of the defendants in these cases. what do you think? >> i am, congressman. and a few moments ago to many laughs i note that had we don't deal with too many regulatory offenses in my line of work. most of our cliptss s clients are facing more serious felonies. of course as a broad principle, i think -- >> but this could apply in any type of criminal violation of the law. >> it could. and certainly we do deal with issues of false statements and i do think mens rea requirement in those situations outside of the health and environmental regulatory situations which we really don't deal with on a regular basis.

but as a general principle, i of course it's vital. it often distinguishes from civil misconduct and it's an important distinction. it's why we impose some sort of separate moral sanction because of the person's intent and what they meant or didn't mean to do. >> well, thank you. i want to thank you all. i do have a concern that individuals who believe they're acting in good faith and did not know that they are willfully violating the law, i think that the overall nekts differenceness of the rule of law is weakened when you don't take into account a requirement that you have a showing of mens rea. and i'd be happy to work with you and others on whether there is a narrow band of exception to that. but i think in general, that should be a requirement. thank you, mr. chairman.

>> at this time, we're going it adjourn. let me say this. if any of you have any closing statement you want to give.let me say this. if any of you have any closing statement you want to give.adjourn. let me say this. if any of you have any closing statement you want to give. i'm retiring after 22 years. but i've never seen such a bipartisan recognition about the urgency to address overcriminalization, overfederalization of criminal cases. and sentencing reform particularly. there is broad agreement among u.s. attorneys judges members of congress. i think the general public. apit is a very important thing. and i comment members of this committee, our chairman, for recognizing that.

and we have some of our most conservative members, our most liberal members. so hopefully it's something that we can do and if we have to do it incrementally as opposed to trying to -- i don't think there is any perfect solution, but i would hope that we could take some action on that. it looks like some of the other issues will be much harder to gain consensus. so we appreciate your testimony. our federal judges have been telling us and even in our district for years we had a problem and they continue to tell us. and i know that our inaction to a certain extent is resip datingat a time dating the problem enven

greater. as we read your testimony we may have additional questions for you. we have less than five minutes remaining on the floor. some of us are not as fast as others. so this hearing is adjourned. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] >> next, the national governors association on helping veterans transition to civilian life. then "washington journal." >> let our republican is am so focused and so dedicated not be futile by unthinking and stupid labels. [applause]

i would remind you that extremism in the defense of liberty is no vice. [applause] [applause] thank you. let me remind you also that moderation in the pursuit of